Clearing up the Misconceptions About Holiday Pay

In California, there seems to be a lot of confusion about requirements for holiday pay for employees. Our office routinely fields questions from employers and employees on this topic during the holidays. This blog post is intended to clear up some of the common misconceptions about holiday pay.

In California, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays. The law also does not require that the employer close its business on any holiday or that any employee be given the day off for any particular holiday. If an employer elects to close its business on a holiday and give its employees time off from work with pay, then such a circumstance exists pursuant to an internal policy or practice adopted by the employer. There is nothing in the law that requires such a practice. Additionally, there is nothing in the law that mandates that an employer pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium for work performed in excess of eight hours in a workday or 40 hours in a workweek.

Consider the following questions/scenarios that have been posed by employees on this topic:

Q: We get 11 holidays off each year without pay. My sister gets the same 11 holidays off, and she gets paid for all of them. Is my employer breaking the law because he is not paying us for these holidays when he is required to, even though we don't work on any of them? 

Answer: No, your employer is not breaking the law. There is nothing in state law that mandates that employees be paid for holidays that are not worked.

Q: Last week we were closed for business on Monday to celebrate a holiday. Consequently, I worked Tuesday through Saturday that week, eight hours a day. When I got my paycheck this week, I was paid for 48 hours last week at my straight time rate. Shouldn't eight of those hours be paid at time and one-half, the overtime rate, since I was paid for more than 40 hours in the workweek? 

Answer: No, you were paid correctly. In this situation, even though you did not work on the holiday your employer chose to pay you for it, which it has the absolute right and discretion to do. However, the determination of whether overtime pay is due is based on hours worked, and not upon pay received. Thus, since you did not work more than eight hours in any one workday, or more than 40 hours in the workweek, you are not entitled to any overtime pay for the workweek.

Q: My employer is open for business on every holiday, some of which I have to work. Isn't this against the law? 

Answer: No. There is nothing in state law that mandates that an employer must close its business on any particular day, if at all. It is up to your employer to select which days, if any, it chooses to be open and closed for business. If your employer is open on a holiday and schedules you to work on that day, then there is nothing in the law that obligates your employer to pay you anything but your regular pay and any overtime premium for all overtime hours worked.

Should you have continuing questions or concerns about holiday and overtime pay or questions about employment law, then contact Ronnie Gipson at (415) 692-6523 or by email at gipson@higagipsonllp.com.

Closer Scrutiny of Online Content Sharing by ISPs

In the face of widespread online file sharing, Internet Service Providers (ISPs), such as AT&T, Cablevision Systems, Comcast, Time Warner Cable, and Verizon are implementing a "six-strike" plan to educate and prevent pirates from downloading unauthorized material. You read that right- there are six strikes. The system is intended to target peer-to-peer file sharing websites, and not online lockers, such as Dropbox, or email attachments.

After the first offense is detected, the Internet subscriber will receive an email alert from their ISP saying that the subscriber account may have been used for “online content theft.” After the second offense, the Internet subscriber will receive another email alert, but possibly with an additional educational message about the legal consequences of online content theft. Third and fourth offenses will also result in email notifications, along with the addition of a pop-up or landing page that the Internet subscriber must click on to acknowledge receipt. Beginning at the fifth offense, “Mitigation Measures” may be taken against the subscriber. These measures may include, for example: “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter.” ISPs probably will not disable the subscriber’s voice telephone, e-mail account, or any security or health service. There will be no blacklist of subscribers shared amongst ISPs. The ISPs also have the option to waive the Mitigation Measure. After a sixth offense, Mitigation Measures will be implemented against the subscriber again. Under this system, a subscriber’s account will not be terminated.

If an Internet subscriber believes s/he has been wrongfully targeted, the subscriber may request an investigation for a $35 filing fee. There is considerable interest to see if this system will really be effective. There is a time frame after which the calendar to measure strikes resets, but when the calendar resets is not clear. In practice, a person may actually have more than four strikes before Mitigation Measures are implemented by the ISPs. As the system is more widely implemented, it will be interesting to see how the specific mechanics change for practical application.

To obtain more information about the system, contact Veronique Kherian at vkherian@higagipsonllp.com or (415) 692-6520 Ext. 109.

AirVenture 2012 & The Pilots Bill of Rights

I just returned from my very first Air Venture fly-in at Osh Kosh, WI. I could spend pages discussing my impressions of the wonderful folks I met in the North 40, the Warbird area, or while watching the night airshow. Instead, I will discuss the passage of the Pilots Bill of Rights announced during the event.

Let's start with some background. In October 2010, Senator Jim Inhofe was flying his twin engine plane into an uncontrolled field in Texas. While in flight Sen. Inhofe was under the control of ATC. However, during the transition phase from cruise to descent and landing, the controller made a mistake and cleared Sen. Inhofe to land at the airport instead of terminating radar services. When Sen. Inhofe was on short final he observed a maintenance crew with equipment on the first 1/3 of the runway. He was not advised of the maintenance crew's presence by either the controller or the NOTAMs he obtained for his preflight. Sen. Inhofe was able to safely land the aircraft on the remaining 2/3 of the runway avoiding any contact with the maintenance crew or equipment.

Unfortunately, the story does not end there. The FAA initiated an investigation into the incident and then proceeded to pursue an enforcement action against Sen. Inhofe's license. To defend himself, Sen. Inhofe requested copies of the ATC tapes. Under the current system, the facility responsible for the tapes was not required to turn them over to Sen. Inhofe as he prepared to mount his defense to the allegations raised by the FAA, even though they conclusively proved that he was not at fault for any wrongdoing. It took Sen. Inhofe four (4) months to obtain the tapes. In the end, an informal agreement was reached and the enforcement action was resolved without either a suspension or revocation of Sen. Inhofe's license.

The event clearly exemplified to Sen. Inhofe all of the injustices in the enforcement process that certificate holders face. As a result, with the help of AOPA and the EAA, Sen. Inhofe presented legislation to the Senate titled the Pilots Bill of Rights. Essentially, the Pilots Bill of Rights is designed to eliminate the current elements of unfairness and justice to certificate holders subjected to the enforcement process.

Specifically, the Pilots Bill of Rights requires National Transportation Safety Board (NTSB) proceedings for the review of decisions of the Administrator of the Federal Aviation Administration (FAA) to deny, amend, modify, suspend, or revoke an airman's certificate to be conducted, to the extent practicable, in accordance with the Federal Rules of Civil Procedure and Federal Rules of Evidence. The Bill requires the Administrator to:

(1) advise the subject of an investigation involving the approval, denial, suspension, modification, or revocation of an airman certificate of specified information pertinent to the investigation; and

(2) provide him or her with access to relevant air traffic data.

Next, the bill allows an individual to elect to file an appeal of a certificate denial, a punitive civil action, or an emergency order of revocation in the U.S. District Court in which the individual resides, in which the action in question occurred, or the district court for the District of Columbia. The bill allows an adversely affected individual who elects not to file an appeal in a federal district court to file such appeal with the NTSB. The bill directs the Administrator to begin a Notice to Airmen (NOTAM) Improvement Program to improve the system of providing airmen with pertinent and timely information before a flight in the national airspace system.

The bill also makes Flight Service Station briefings and other air traffic services performed by Lockheed Martin or any other government contractor available to airmen under the Freedom of Information Act (FOIA).

Finally, the bill requires the Administrator to review the FAA system for the medical certification of airmen in order to:

(1) revise the medical application form,

(2) align medical qualification policies with present-day qualified medical judgment and practices, and

(3) publish objective medical standards to advise the public of the criteria determining an airman's medical certificate eligibility.

At Oshkosh, Sen. Jim Inhofe along with Congressman Samuel Graves, the bill's sponsor in the House of Representatives, were on hand to announce that the Pilots Bill of Rights had passed both the Senate and House without objection. The legislation now moves on to the President for signature. Under Article I, Section 7 of the United States Constitution, the President has 10 days to sign the legislation into law. Since Congress is in session if the President fails to take any action, then the bill automatically becomes law. The aviation community and especially aviation attorneys like me who work to defend Airmen and certificate holders in enforcement proceedings thank Sen. Inhofe, Congressman Graves, AOPA, and EAA for their support in passing essential legislation that returns the enforcement process to a system that is fair.

My purpose for going to AirVenture is that I was invited to join the EAA's Legal Advisory Council. I am humbled and honored to join this prestigious group of aviation attorneys. The Council consists of nine (9) attorney members who provide advocacy support to EAA. More importantly the Council members mainly serve as a resource to the EAA members who have legal questions. Now that I am a member of both the AOPA Legal Panel and the EAA Advisory Council, I am excited at the prospect of being able to reach Airmen and Certificate holders and assist them regardless of their specific flying interest. 

Should the need arise for representation in the enforcement process or any other aviation legal question occur, then feel free to contact me at (415) 692-6520. I can also be reached by email at gipson@higagipsonllp.com.

Is This Considered Fair Use?

I am regularly asked to answer questions of whether or not some activity--artistic or commercial--involving the use of previously-created material is considered "fair use" of that material. The inquirers are usually engaged in any number of various activities, such as projecting photos onstage during the performance of play, creating photorealistic renditions of film, album covers, and posters, or incorporating photos into an academic article.

Folks ask me about these types of use because fair use is indeed supposed to encourage discussion of copyrighted works. Fair use (refers to Section 107 of the Copyright Act) encourages commentary, criticism, news reporting, teaching, and archiving of original works. That’s why a scholar hoping to include some movie stills in her doctoral dissertation may have a strong fair use defense to a copyright infringement claim. However, if she decides to begin selling this dissertation on Amazon.com as a book, the copyright owners of those movie stills may begin taking notice.

In a separate blog post I discussed the four factors that courts will examine when determining if an activity constitutes fair use. The factors provide a complex framework for many different aspects of all parties and all works involved and are not pertinent for this blog post. Understandably, the court decisions that apply the factors span the gamut with respect to their emphasis and outcome. Fair use is determined on a case-by-case basis, making a quick answer to a seemingly innocuous question practically impossible.

Another point that must be made is that claiming fair use is an affirmative defense in a copyright infringement case. Fair use is brought up after the opposing party has already initiated a lawsuit. The Fair Use defense will not prevent a copyright holder from initiating litigation against you. To get the benefit of the Fair Use defense, you can expect to spend a significant sum of money defending your interests in a copyright litigation case before gaining the benefit of the defense, assuming that you are successful with a dispositive motion.

Therefore, whether you are a musician sampling some riff in your own work, an academic about to publish her dissertation, or a business owner who wants to jazz up your website with the CEO's favorite music recording, I strongly recommend to my clients that they obtain licenses of the works they are incorporating into their activities. The license removes the risk of copyright-related litigation, and allows you to work with the copyright owner to achieve the best result for all parties.

If you have questions about fair use, copyright, or licensing, then please contact Veronique Kherian at vkherian@higagipsonllp.com. You can also reach Ms. Kherian by telephone at (415) 692-6520 Ext 109.

Baseball & Turns Around A Point

Baseball season is in full swing. Locally, the San Francisco Giants are off to a good start to the season. In my hometown (Dallas, TX), the Texas Rangers (2-time World Series Contenders) are also off to a strong start leading their division. With respect to aviation law, why should you care? There are some peculiar similarities between the two teams that could give rise to an identical infraction by Airmen who happen to be baseball fans.

Both the Texas Rangers and SF Giants baseball stadiums sit beneath the Class B Airspace of DFW & SFO respectively. Each stadium is far enough away from the primary airport, such that a pilot flying VFR could fly below the Class B Airspace and get close enough to observe a game in progress. (Technically, to fly over the SF Giant’s stadium, a pilot would need permission to transit Oakland’s Class C Airspace). In any event, the possibility exists to view a game in progress from the air.

Before you fuel the plane and embark on an afternoon of turns around a point, consider the applicable Federal Aviation Regulations (FARs). Specifically, FAR section 91.119 provides in pertinent part, “Except when necessary for takeoff and landing, no person may operate an aircraft below the following altitudes:…(b) Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft….”

A Major League Baseball game in progress constitutes an open air assembly of persons as does similar sporting events such as a NASCAR race, an outdoor ATP/WTA tennis event; and arguably a kid’s weekend soccer game or a company softball game. If you fly your aircraft over one of these events to enjoy a bird’s eye view, then take every precaution for the safety of the spectators below to remain 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet. When flying over Texas stadium, the area surrounding the stadium is relatively flat there don’t appear to be structures close by within 2,000 feet that are taller than the lights of the stadium. Prudence would dictate that you fly 1,000 feet above the tallest point at the stadium. If flying over the SF Giants stadium, then take into account that there are buildings taller than the stadium adjacent or close by to the stadium which would necessitate a higher altitude to comply with the FAR.

Before setting off for a joyride above the ballpark, be certain that you can perform the flight safely for yourself, your occupants, and the spectators on the ground below while complying with FAR 91.119. Note that FAR section 91.13 prohibits a pilot from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another. A spectator on the ground won’t be familiar with the FARs and could place a call to the local FSDO to report an aircraft buzzing the game. When the FAA investigates, they may very well conclude that your operation of an aircraft close to the minimum altitudes constitutes a careless or reckless endeavor. Do your planning and take the proper precautions to avoid getting involved in a needless FAA enforcement action. If you have questions about FAR section 91.119 or any other FAR, then contact Ronnie Gipson for clarification. He can be reached by email at Gipson@higagipsonllp.com or by telephone at (415) 692-6520.

Licensing Agreements Simplified

I am frequently asked to provide guidance on intellectual property license agreements, and thought a short guide would be helpful to readers. If you compare intellectual property (IP) rights to a bundle of sticks, the licensee would be required to obtain a couple sticks out of that bundle to continue her project. A license is granted when one obtains a subset of the full ownership rights of intellectual property.

What can the licensor and licensee expect to see in a license agreement? These agreements vary greatly, depending on the unique circumstances of each deal, including the type of IP being licensed, the licensee’s intended use of the IP, and the size of the contracting parties. Here’s a list of some of the clauses that are common to intellectual property licenses:

Definition of the intellectual property being licensed. This can sometimes be heavily negotiated because this defines exactly what the licensee can sell by using the licensed IP.

Scope of the license. Licenses can vary greatly. Sometimes there are geographic limitations to where a licensee can exploit her license, sometimes there are temporal limitations. Channels of trade may also be restricted—for instance, a license to use some software license may be limited to software sold in retail stores, or internet stores. The licensee may also be limited in how she can use her license. Licensors may also wish to set minimum or maximum price levels a licensee can sell a product at. There are other elements that can limit the scope of use; these negotiations can become quite complex.

Royalty terms. For obvious reasons, these are some of the most heavily-negotiated terms in a license agreement. Royalties can be paid in a variety of ways—in a lump sum, or on a regular, ongoing basis. The calculation of royalties may be done using a variety of methods, including looking at net sales resulting from the license, or profits resulting from the license. The payment method, term, and regularity will need to be agreed upon by both parties.

Audits. With any calculation of royalties based on a licensee’s sales or performance, the licensor will want to conduct regular audits of the licensee’s activities. Parties will need to decide when these will take place, by whom, and who will bear the costs of such audits.

Enforcement. Parties will also need to determine whose duty it is to enforce the intellectual property associated with the license. There are several ways of organizing this duty, and the stakes can be high for all parties involved.

Modifications to Intellectual Property. Will the licensee be able to modify or improve the intellectual property in any way? Who will own the rights to such modifications?

This list represents a sample of the many considerations that may arise in a licensing transaction. If you have any further questions about licensing agreements, then please contact Veronique Kherian at vkherian@higagipsonllp.com. You can also reach Ms. Kherian by telephone at (415) 692-6520.

California Supreme Court Holds That Employers Are Not Required to Police Employee Meal Breaks

The California Supreme Court issued an opinion recently in Brinker v. Superior Court, that has a huge impact on California employers. At issue was the question of whether or not employers are required to police employees’ actions to ensure that the employees are not working during these breaks. Employees who file wage and hour claims have long alleged that employers were liable to the employee for compensation when the employer provided time for the meal breaks but failed to ensure that the employee refrained from performing any work related tasks during mandatory meal breaks. Employers in response have long argued that they have met their obligations under the Labor Code by providing the meal breaks and that they bear no liability if an employee violates the intent of the break and performs work related tasks during the meal break period.

Per the California Labor Code section 512, an employee is entitled to a 30 minute meal break after 5 hours of work. Interpreting the Labor Code, along with the Wage Orders and Opinion Letters issued that attempt to further explain this law, the Court held that the condition precedent that triggers an employer’s duty to provide a meal break is employment of the person for at least 5 hours. The resulting entitlement by the employee is a meal period of at least 30 minutes. The Court could find no statutory or public policy basis for concluding that an employer is obligated to police employee meal breaks to ensure that the employee is not working during that time. On the contrary, the Court held that it would be inconsistent with the clear plain meaning of the statute to interpret the law to mean that the employer must exert control over the employee during the meal break to confirm that no work is being done. Restated, the imposition of a policing requirement would in effect require the employer to exert control over the employee during the meal break which would run counter to the public policy behind the very purpose of the meal period….relinquishment of employer control during the meal break period.

If you have questions about how this recent ruling by the California Supreme Court could impact your company’s operations, then contact Ronnie Gipson at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Airmen in the Pacific Northwest Face Possible Fines of up to $100,000

Effective February 27, 2012, a new regulation takes effect that would enable the National Oceanic and Atmospheric Administration (NOAA) to impose fines of up to $100,000 for flying at low altitudes (1,000 to 2,000 feet msl) over wildlife sanctuaries in the Channel Islands, Monterey Bay, and the Gulf of the Farallones National Marine sanctuaries in California and Washington.  It is important to note that the boundaries of the new protected areas differ from the boundaries depicted on current charts.

General Aviation organizations such as the Aircraft Owners & Pilots' Association (AOPA) and the Experimental Aircraft Association (EAA) have joined forces in an effort to delay implementation of the new rule without a depiction of the affected areas in graphic form.  Currently, NOAA plans to make Airmen aware of the areas through a Federal Register notice and press releases.  Fundamentally, strict adherence to publication of the lateral dimensions in the Federal Register is insufficient because Airmen correlate restricted/special use airspace with visual representations on charts.  Thus, absent an accurate depiction of the new boundaries of the protected areas, Airmen are certain to violate them due to a lack of proper notice. 

One of the more disturbing aspects to the new regulation is that the final rule contains a provision that presumes that wildlife have been disturbed if the Airmen strays into the ill-defined airspace.  Taken to the next logical step, in an enforcement proceeding, this contention would be impossible to disprove, save locating wildlife who are capable of providing cogent testimony. 

If you are planning a trip to the Pacific Northwest, and in particular a trip near one of the protected areas referenced above, then take every precaution to understand the lateral dimensions of the affected protected areas and avoid them.  Should the need arise to challenge a proposed penalty for violating one of these protected areas, then contact our Aviation Attorney Ronnie Gipson at 415.692 6523 or by email at gipson@higagipsonllp.com.    

FAA Safety Team Clarifies IFR Currency Requirements in FAR Part 61.57

On December 16, 2011, the FAA issued a technical correction to 61.57(d) to clarify the meaning of the latest change to the instrument flight rules (IFR) currency regulation. The FAA wrote as follows:

The revised language makes it clear that a pilot who has failed to maintain instrument currency for more than six calendar months may not serve as pilot in command under IFR or in weather conditions less than the minimums prescribed for VFR until completing an instrument proficiency check. A pilot whose instrument currency has lapsed for less than six months may continue to reestablish instrument currency by performing the tasks and maneuvers required in paragraph (c).

On January 27, 2012, The FAA Safety Team issued a notice clarifying the technical amendment to the IFR currency requirements under FAR part 61.57. Notwithstanding certain exceptions, this section of the FARs describes procedures that an Airmen must follow to regain IFR proficiency when his currency has lapsed. In short, a pilot may reestablish instrument currency that has lapsed for more than 6 months by obtaining an Instrument Proficiency Check (IPC).

The following timeline illustrates the correct application of part 61.57(d):

• As of January 31, 2012- a pilot is no longer instrument because they no longer meet the recent experience requirements found in 61.57(c). This pilot may no longer act as PIC of an aircraft operating under IFR or in weather conditions less than the minimums prescribe for VFR.
• From February 1, 2012 to July 31, 2012- the pilot has between these dates to obtain the recent experience requirements found in 61.57(c). This experience may be obtained through instruction, the use of a safety pilot, or through a simulator/training device.
• As of August 1, 2012- If by this date, the pilot has not regained instrument currency, then the only method by which a pilot may become instrument current again is by obtaining an IPC.

If you have questions about the proper implementation of FAR Part 61.57, then contact Ronnie Gipson by email at Gipson@higagipsonllp.com or by telephone at 415.692.6523.

Ninth Circuit Holds that Substantial Compliance with Pilot Training Warranty is Not Enough to Trigger Coverage

In Trishan Air, Inc. et al. v. Federal Insurance Co., et al., 635 F.3d 422 (9th Cir. 2011), the Court addresses whether or not an insured, in this case a Part 91 Operator, can invoke the doctrine of substantial compliance with a pilot training warranty provision in the insurance policy to receive coverage.

Background

On June 10, 2007, a Dassault Falcon 900 jet was set to depart Santa Barbara Municipal Airport for Tampa International Airport. The aircraft had 2 crew members and 13 passengers. Due to a miscalculation in the gross takeoff weight by the second in command (SIC) pilot, the V-speeds were erroneous. As an accompanying error, the stabilizer trim was more than 2 degrees outside the recommended setting for takeoff. Upon reaching Vr, the captain pulled back on the yoke with no response. The captain released the back pressure and the aircraft sped up past the 130-knot mark and the captain again pulled back on the yoke again with no response. Power was reduced and maximum braking was applied. Nonetheless, the airplane departed the end of the runway and impacted a berm. The accident did not result in any fatalities but the aircraft received significant damage.

Prior to the accident, Trishan Air Inc. (Trishan) purchased an insurance policy from Federal Insurance company (Federal) to cover its fleet of jets. At the policy quote stage, Trishan requested that the insurance policy provide coverage for its SIC pilots as long as they met the minimum qualifications set forth in FAR Part 61.55. Trishan was informed by the underwriter that such a policy was not possible. Instead, the underwriter submitted a quote to Trishan that encompassed a pilot training warranty whereby the SIC pilots were required to complete ground school, flight school, and accrue time in a full motion simulator for the make and model of the covered aircraft they would fly in addition to the qualifications set forth in Part 61.55. When the policy of insurance was issued, it included a pilot warranty endorsement containing the more stringent requirements.

Subsequent to the accident, Federal denied coverage for the accident because the SIC at the time of the accident never attended any formal course (ground or flight) relative to any Falcon aircraft in violation of the pilot warranty endorsement in Trishan’s policy. The District Court granted Federal’s motion for summary judgment holding that Federal’s denial of coverage comported with California law.

Court’s Analysis

On appeal, Trishan argued that it was not required to strictly comply with the pilot training warranty to receive coverage. Trishan cited McKenzie v. Scottish Union & Nat’l Ins. Co., 112 Cal. 548 (Cal. 1896) to support the contention that substantial compliance with a warranty merits coverage by the insurer. The Court discounted Trishan’s argument on the basis that compliance with a warranty in an insurance policy is a fundamental component to the risk being evaluated. The Court held that pilot qualifications and experience are obviously factors bearing directly on the risk the insurer is underwriting. Thus, if Trishan were allowed to advance the sufficient compliance argument then there would be no effect whatsoever to the warranty provision in the insurance policy requiring a certain level of proficiency to merit coverage. For emphasis, the Court opined, “If adopted, the practical effect of Trishan’s proposition would be significant, as it would permit an insured to universally assert that only substitute performance, based on the insured’s subjective selection, would be necessary to receive coverage.” In effect, Trishan’s argument sought to rewrite public policy with respect to insurance contract interpretation, which is a step the court rightfully was not willing to take.

The Court went on to demonstrate how Trishan’s actions/inactions failed to merit consideration as substantial compliance. In this instance, the SIC had not received any formal ground school, flight time instruction, or time in a Falcon 900 flight simulator. It is important to note that the captain on the accident flight was also the Chief Pilot whose job duties included making sure that all of the SICs were qualified in make and model prior to dispatch for flights. Not surprisingly, the Court concluded that Trishan had not taken any steps to make sure that the accident SIC met any provision of the pilot training warranty. The cases cited supporting Trishan’s substantial compliance argument contain one common denominator- the fact that the insureds in the referenced cases complied with at least some of the specific requirements at issue. California courts have rejected substantial compliance arguments where the insured completely failed to comply with a warranty or condition. Trishan’s struggle to use the substantial compliance argument was destined to fail, just like the takeoff roll of its Falcon 900 with the improperly trained SIC.

For more information on how the Trishan Air, Inc. case impacts your operations, contact Ronnie Gipson by email at Gipson@higagipsonllp.com or telephone at 415.692.6523.

FAA Explains Crewmember Rest For Flights Conducted Under Part 91

In November 2011, the Flight Standards Regional Office in Alaska requested an interpretation as to whether or not Part 91 permits a required flight crewmember to take a "controlled rest period" i.e. a nap when an augmented crew is not present. 

The controlling provision of the FARs is 14 CFR section 91.105(a)(1) which provides that each required crewmember must be at his crewmember station during takeoff, landing, and while en route.  The implication present in the statute is that the crewmember must actually perform his duties while at his crewmember station.  By simple deductive reasoning along with a careful reading of the regulation, the FAA reasoned that a crewmember who is asleep at his crewmember station cannot and is not performing his duties.  Thus, the FAA concluded that Part 91.105(a)(1) does not permit a required flight crewmember to sleep at his crewmember station.

There are 2 recognized exceptions  to the requirement.  First, a crewmember may leave his station if the absence is necessary to perform duties in connection with the operation of the aircraft.  Second, a required crewmember is allowed to leave his station in connection with physiological needs.  In flight sleep is not a duty that is necessary to operate the aircraft thus a required crewmember does not qualify under the first exception on a Part 91 flight.  Next, the physiological needs exception is very narrow, it only permits breaks for activities such as using the restroom or stretching your legs briefly during a long flight. 

For a large portion of the flying community, a part 91 flight is conducted in an aircraft similar in size to a Cessna 172.  For these pilots, if they were successful in extricating themselves from their seat, there is simply no where to go for physiological needs and there is no aisle to walk down to stretch their limbs.  However, there are flights conducted under Part 91 on larger aircraft that allow a required crewmember to attend to physiological needs or stretch their legs and after reading the FAA's interpretation letter they can continue to do so. 

The above discussion results in a different outcome if the flight is augmented.  In an augmented flight, the required crewmember is replaced by another qualified crewmember.  When the replacement of a crewmember happens, the original crewmember is no longer "required" within the meaning of FAR 91.105(a)(1) because his presence is no longer needed to safely operate the aircraft.  It is important to remember that each and every crewmember is responsible for ensuring that they are sufficiently rested and able to perform their required duties prior to accepting the responsibility of becoming a required crewmember.

If you have questions about the crewmember rest provisions or understanding the FARS as they apply to your operations, then contact Ronnie Gipson by email at gipson@higagipsonllp.com or by telephone at 415.692.6523.         

The Medical Field's Copyright Clash

Lately, the medical community has been buzzing about copyright law’s intrusion into the field. It is rare to see the merging of these two fields, but disputes have been mounting over the use of a diagnostic tool used to test mental ability (often to screen for dementia) - the Mini-Mental State Evaluation (MMSE).


The MMSE has been in existence since 1975, and, until about 2000, was freely available for use. The MMSE became a standard diagnostic tool for doctors and medical schools; it was freely referenced in manuals and textbooks. The test measures cognitive ability based on certain categories: orientation to time, orientation to place, registration, attention and calculation, recall, language, repetition, and complex commands. The original authors of the test maintained their copyright rights from 1975 until 2000, when they transferred their rights to MiniMental. In turn, MiniMental granted Psychological Assessment Resources (PAR) an exclusive license to publish the test. The transfer of copyright explains the dramatic shift from a dearth of copyright enforcement from 1975 to 2000 to aggressive enforcement from 2000 forward. The test started disappearing from textbooks, and users of the test were required to have a license from PAR.

The most recent dispute involves the Sweet 16 test, a 16-question test also used to gauge cognitive ability. In response to the tighter policing of the MMSE test, Dr. Tamara Fong, a Harvard University researcher, developed the Sweet 16 test in 2010. The Sweet 16 test, used to test Cognitive ability, like the MMSE test, was sometimes preferred by doctors because it was shorter to administer and did not require pen and paper. The Sweet 16 test was freely available on the Internet until recently, when PAR demanded the test be taken down. Although Dr. Fong independently created the test, several elements are apparently substantially similar to the MMSE, enough for PAR to make a copyright infringement threat.

The uproar over the enforcement of copyright rights for these two tests raises many questions, legal and ethical. Should a test that has been freely distributed for nearly 30 years and that has been a staple of the medical field suddenly be unavailable except to those willing to pay a licensing fee? Should public interest dictate that the test be transferred to the public domain, particularly because it has been so prevalent for decades? Is it consistent with public policy for the law to continue to protect the holders of these property rights? What kind of test for cognitive ability can doctors, schools, and textbooks safely use without fear of infringing on PAR’s copyright rights?

It is perfectly legitimate to wonder how a medical test could be copyrighted in the first place. Copyright law dictates that one cannot copy an idea, but an expression of an idea fixed in a tangible form is protectable. The MMSE tests skills such as language, calculation, and orientation to time. The testing of these themes constitutes an idea, but the specific questions posed to establish, for instance, language skills, might be eligible for copyright protection under certain circumstances. There are several ways to test language skills, so protecting one question wouldn’t necessarily prevent someone from testing language in a different way. However, how many ways are there to test orientation to time? One could ask the day of the week, the current month, the year, but not very much else. In a case like this, one could argue that because there are a limited number of ways to test time orientation, that question should not be eligible for copyright protection. Just as many written forms (that ask your name, address, contact information, educational background, etc.) are ineligible for copyright protection, shouldn’t several basic orientation questions be ineligible for copyright protection? Many in the medical field think so.

What are the public policy concerns? The MMSE is a work that has been freely available for nearly 30 years. The MMSE is heavily ingrained in the medical profession, and it has helped in the proper treatment of countless patients. Can such a work really be snatched out of the medical profession’s hands after such a long time? Copyright law was designed to balance the rights of the author to profit from his/her work against the rights of the public to benefit from the work. There are set durations established for copyright law, but a court, should it come across this situation, will weigh these two sets of rights and the circumstances. Many feel the test should pass to the public domain because of its longtime presence in the field. PAR will certainly disagree. Here at Higa & Gipson, LLP this is just one of the trends in intellectual property law that we follow to provide exceptional representation in this dynamic field of law.

If you have any questions about copyright protection, then please contact Ronnie Gipson at Gipson@higagipsonllp.com, or Veronique Kherian at vkherian@higagipsonllp.com. We can be reached by telephone at (415) 692-6520.